B-128871, AUG. 24, 1956

B-128871, AUG. 24, 1956

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR MR. HARVEY MILLER, HARVEY, ILLINOIS, ALLEGES HE MADE IN HIS BID ON WHICH CONTRACT NO. N128S-96217 WAS AWARDED.

THE NAVAL SUPPLY DEPOT, GREAT LAKES, ILLINOIS, BY INVITATION NO. B 146-56 REQUESTED BIDS--- TO BE OPENED JUNE 5, 1956--- FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, ONE GENERATOR, ITEM 13, THE ORIGINAL ACQUISITION COST OF WHICH WAS STATED TO BE $750. IN RESPONSE MR. HARVEY MILLER SUBMITTED A BID OFFERING TO PURCHASE THE GENERATOR COVERED BY ITEM 13 AT A PRICE OF $41. THE BID OF MR. MILLER WAS ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $8.20. BY NOTICE OF AWARD DATED JUNE 6, 1956, MR. MILLER WAS ADVISED THAT HE HAD BEEN AWARDED ITEM 13 AND THAT THE DIFFERENCE BETWEEN HIS BID DEPOSIT AND THE PURCHASING PRICE OF THAT ITEM SHOULD BE FORWARDED TO THE CONTRACTING OFFICE.

IT IS REPORTED THAT MR. MILLER RETURNED THE NOTICE OF AWARD WITH A NOTATION THEREON TO THE EFFECT THAT HE HAD NOT BID ON ITEM 13 (GENERATOR) BUT THAT HE HAD BID ON ITEM 10 (TAPE RECORDER). BY LETTER DATED JUNE 12, 1956, THE DISPOSAL OFFICER RETURNED THE COPY OF THE NOTICE OF AWARD TO MR. MILLER AND ADVISED HIM THAT IN HIS ORIGINAL BID, ITEM 10 WAS LEFT BLANK AND THAT FOR ITEM 13 IN HIS BID HE HAD INSERTED A PRICE OF $41. BY LETTER DATED JUNE 15, 1956, MR. MILLER ADVISED THAT HE HONESTLY THOUGHT THAT HE HAD BID ON ITEM 10 (TAPE RECORDER) AND THAT THE PURCHASE OF THE GENERATOR COVERED BY ITEM 13 WOULD BE A COMPLETE LOSS TO HIM.

IN A LETTER DATED JULY 10, 1956, MR. MILLER STATED AS FOLLOWS:

"THANK YOU FOR YOUR LETTER OF JULY 2ND.

"YOU SUGGEST THAT I PRESENT A DETAILED STATEMENT OF MY ERROR IN BIDDING ON ITEM 13. I INDICATED ITEM 10 BOTH ON THE FRONT OF THE ENVELOPE AND ON THE FIRST PAGE OF THE BID INVITATION AND ACCEPTANCE. I HONESTLY THOUGHT THAT IT WAS OPPOSITE ITEM 10 THAT I ENTERED MY BID. (ITEM 10 IS A TAPE RECORDER.)

"THE FACT OF THE MATTER IS THAT I STILL WOULD HAVE TAKEN ITEM 13, THE D.C. MOTOR AND A.C. GENERATOR WERE IT NOT FOR THE FACT THAT MY LOSS WOULD NOT ONLY HAVE INCLUDED THE ENTIRE BID BUT ALSO THE FREIGHT CHARGES FROM THE UPPER PENINSULA OF MICHIGAN TO CHICAGO. THESE ITEMS MIGHT BE USEFUL TO SOMEONE ELSE.

"I HOPE THAT THE DECISION OF THE BUREAU OF SUPPLIES AND ACCOUNTS WILL BE FAVORABLE TO ME AND THAT MY EIGHT DOLLAR DEPOSIT WILL BE RETURNED. IN ANY CASE I WOULD LIKE TO REMAIN ON YOUR BIDDERS' LIST IN THE HOPE THAT MY NEXT TRY WILL BE SUCCESSFUL.

"THANK YOU AGAIN FOR YOUR PATIENCE.'

IN CONNECTION WITH THE SECOND PARAGRAPH OF MR. MILLER'S LETTER OF JULY 10, AND IN RESPONSE TO THE REQUEST OF THIS OFFICE, THE BUREAU OF SUPPLIES AND ACCOUNTS REQUESTED THE GREAT LAKES NAVAL SUPPLY DEPOT TO ADVISE WHETHER MR. MILLER HAD INDICATED BOTH ON THE FRONT OF THE BID ENVELOPE AND ON THE FIRST PAGE OF THE INVITATION TO BID THAT HE WAS BIDDING ON ITEM 10 AND, IN ANSWER TO SUCH REQUEST, THE DEPOT REPLIED IN THE NEGATIVE.

THE BASIC QUESTION FOR DETERMINATION IS NOT WHETHER MR. MILLER MADE A MISTAKE IN HIS BID ON ITEM 13, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THERE WAS NOTHING ON THE FACE OF THE BID SUBMITTED BY MR. MILLER TO INDICATE THAT THE BID OF $41 ON ITEM 13 WAS NOT INTENDED FOR THAT ITEM. THE ABSTRACT OF BIDS SHOWS THAT THE ONLY OTHER BIDDER ON ITEM 13 QUOTED A PRICE OF $2.66. SINCE ONLY TWO BIDS WERE RECEIVED ON ITEM 13, IT DOES NOT APPEAR THAT THERE WAS ANY MORE ERROR IN HIS BID THAN FOR HIM TO CONSIDER THAT AN ERROR HAD BEEN MADE BY THE OTHER BIDDER. SEE 20 COMP. GEN. 286; 16 ID. 596; 17 ID. 388; ID 601; ID. 976; 28 ID. 261; ID. 550. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF MR. MILLER WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. CONSEQUENTLY, IT MUST BE HELD THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT. UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER. FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS STATED IN HIS LETTER OF JULY 10, 1956, MR. MILLER INADVERTENTLY INSERTED THE PRICE INTENDED FOR ITEM 10 OPPOSITE ITEM 13, SUCH ERROR WAS DUE SOLELY TO HIS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID OF MR. MILLER WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE HIM TO RELIEF FROM HIS OBLIGATION UNDER THE CONTRACT. OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. ..END :